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Water Quality in the Illinois River: Conflict and Cooperation Between Oklahoma and Arkansas

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Water Quality in the Illinois River: Conflict and Cooperation Between Oklahoma and Arkansas Diffuse Pollution Conference Dublin 2003 9A Transboundary: WATER QUALITY IN THE ILLINOIS RIVER: CONFLICT AND COOPERATION BETWEEN OKLAHOMA AND ARKANSAS Thomas S. Soerens1, Edward H. Fite, III2 and Janie Hipp3 1 Department of Civil Engineering, University of Arkansas, 4190 Bell Engineering Center, Fayetteville, AR 72701 (E-mail : [email protected] ) 2 Oklahoma Scenic Rivers Commission, P.O. Box 292, Tahlequah, OK 74465, USA (E-mail: [email protected] ) 3 Agriculture Cooperative Extension Service, AEAB, Room 244B, University of Arkansas, Fayetteville, AR 72701, USA. (E-mail: [email protected]) ABSTRACT The Illinois River originates in Arkansas and flows into Oklahoma where it forms the Lake Tenkiller reservoir and then empties into the Arkansas River. It is designated by the State of Oklahoma as a scenic river. A dispute between the states over water quality in the Illinois River reached the U.S. Supreme Court, who ruled that downstream state’s water quality laws must be met at the state line. This decision has far-reaching implications for interstate water quality disputes. The Illinois River watershed in Arkansas is a leader in poultry production and includes one of the fastest growing metropolitan areas in the United States. Although some wastewater treatment plants still discharge significant phosphorus loads, attention has focused on the spreading of poultry waste on fields as fertilizer. Oklahoma has adopted an in-stream limit of 0.037 mg/L for phosphorus in scenic rivers – about a tenth of the current level in the Illinois River. Because Arkansas must meet this standard, agricultural, business, and governmental interests in Arkansas feel threatened by the new rule. This paper reviews the history of the Illinois River issue in context with other interstate water quality disputes, and discusses technical, administrative, and political efforts to resolve the issue. KEYWORDS: agricultural runoff, interstate water quality issues, phosphorus, transboundary pollution management, water quality monitoring, INTRODUCTION The Illinois River originates in Arkansas and flows into Oklahoma where it forms the Lake Tenkiller reservoir and then empties into the Arkansas River. Figure 1 shows a map of the watershed. The Illinois River in Oklahoma is designated by the State of Oklahoma as a scenic river. This gives the river special protection under state law due to its exceptional ecological and recreational characteristics. The river has significant recreational benefits to the region. Float trips on the river provide about $9 million per year direct economic impact. Lake Tenkiller is a popular destination for fishing, boating, and scuba diving. In the 1980s, turbidity increases in Lake Tenkiller caused concern that the aesthetic quality of the lake and the Illinois River might be threatened. Nutrient enrichment was identified as the source of the problem, with phosphorus being identified as the limiting nutrient. Major wastewater discharges in the Illinois River watershed include the Arkansas cities of Fayetteville, Springdale, Rogers, and Siloam Springs, and the Oklahoma city of Talequa. The Northwest Arkansas region is one of the fastest growing metropolitan areas in the United States. It is the headquarters for Wal-Mart, Tyson Foods, and J.B. Hunt trucking, which are rapidly growing businesses. The landuse distribution in the watershed is approximately 58% pasture, 36% forest, and 6% urban. Arkansas as a state ranks a close 2nd in the USA in poultry production, and the vast majority of that production is in Northwest Arkansas. It is common practice to use poultry litter to fertilize the otherwise unproductive soil to grow hay for cattle. The litter has in the past been applied based on nitrogen, leading to an over-application of phosphorus. This leads to the deduction that this fertilizer causes phosphorus to runoff into the streams. In addition to the nonpoint source pollution attributed to poultry production, the poultry processing plants feed a high phosphorus load to the wastewater treatment plants. HISTORY OF THE ARKANSAS/OKLAHOMA ILLINOIS RIVER WATER QUALITY ISSUE When the city of Fayetteville, Arkansas, diverted a portion of their wastewater discharge out of the White River (which forms Beaver Lake, the drinking water source for the Northwest Arkansas region) into the Illinois River watershed, Oklahoma became concerned about the resulting increase of phosphorus loading into the Illinois River. In 1986, Oklahoma sued to stop the City of Fayetteville’s discharge into the Illinois River. The dispute reached the U.S. Supreme Court in 1992. The court ruled that downstream state’s water quality laws must be met but that this did not exclude additional discharge from up stream sites. 9-14 Diffuse Pollution Conference Dublin 2003 9A Transboundary: Figure 1 – Map of Illinois River Watershed in Arkansas and Oklahoma Following the court ruling, nutrient removal was established in the Fayetteville, Springdale, and Rogers wastewater treatment plants. The City of Fayetteville has a 1 mg/L phosphorus limit in its NPDES permit; the plant discharges about 0.5 mg/L. The City of Rogers has decreased its phosphorus output by 83% since the mid-80s. Nutrient removal at the Springdale plant remains relatively ineffective, in part due to the high nutrient loads from poultry processors. The phosphorus load from the Springdale plant remains a significant source of phosphorus in the Illinois River (Nelson et al., 2002). However, Springdale has committed to installing nutrient removal systems to reduce its discharge to 1 mg/L. The mayors of Fayetteville, Springdale, Rogers, Bentonville, and Siloam Springs Arkansas signed a letter agreeing to keep effluent phosphorus to 1 mg/L (OSRC, 2003). In 1997, the states of Arkansas and Oklahoma agreed to a goal of a forty percent reduction of the 1980-93 total phosphorus loads to Lake Tenkiller. Enforcement of this agreement is administered by an interstate compact commission. With the 9-15 Diffuse Pollution Conference Dublin 2003 9A Transboundary: point sources in the watershed identified, attention was focused on the nonpoint sources, specifically agriculture. Over the past decade or more, both states have enacted voluntary and regulatory measures to utilize best management practices for pasture and animal waste management. Demonstration projects have shown that such measures can be effective. By law, poultry growers must now have a comprehensive nutrient management plan. Growers must be registered and must have training and certification to spread litter. Ongoing research at the University of Arkansas and elsewhere is trying to find ways to limit how much phosphorus reaches the streams. A new water quality based phosphorus index will require that litter be spread based on phosphorus and its capacity to runoff into a stream. A variety of plans and technologies are being evaluated to reduce or eliminate the spreading of poultry litter and wastewater biosolids. In the first few years after the agreement, the phosphorus load results were encouraging and it looked like progress was being made toward the 40% reduction. In the past few years, however, some sampling results indicate that loads have apparently increased. THE OK/AR ILLINOIS RIVER DISPUTE IN HISTORICAL AND NATIONAL CONTEXT The Oklahoma/Arkansas lawsuit over the Illinois River was obviously not the first to deal with transboundary pollution issues. Near the beginning of last century, Missouri v. Illinois (1901) & (1906) established a federal common law of nuisance to govern interstate water pollution. The opinion was that the court should use extreme caution in transboundary pollution matters since these matters speak toward a legislative solution as opposed to a judicial solution. Shortly thereafter, Georgia v. Tennessee Copper Co. (1907) followed the principles of Missouri v. Illinois. The ultimate remedy was granting an injunction against pollution in one state causing pollution in another. New York v. New Jersey (1921) and New Jersey v. New York (1931) were cases that involved transboundary pollution and applied Missouri v. Illinois principles. The passage of the Clean Water Act (CWA) in 1972 established a regulatory backdrop for future activities. The case of Illinois v. City of Milwaukee (1972) found that federal common law of nuisance is applicable to interstate water pollution cases. Milwaukee v. Illinois (1981) recognized that the CWA was intended to comprehensively address water pollution and that the CWA preempted federal common law. In International Paper Company v. Ouellette (1987), the court decided that CWA principles would be frustrated if the law of the receiving state could apply to discharges from the source state, and that common law of the downstream state is preempted by the CWA. In Arkansas v. Oklahoma (1992), the Supreme court upheld the “federal character” of Oklahoma’s EPA-approved water quality standards, and decided that the water quality standards of the downstream state must be implemented by the upstream state. Following the principles of Arkansas v. Oklahoma, City of Albuquerque v. Browner (1996) determined that water quality standards of the downstream Tribe must be implemented by the upstream state. Because of the precedent of Arkansas v. Oklahoma, downstream citizens may bring common law claims against upstream citizens, utilizing the laws of the source state. Theories of trespass, negligence, and nuisance are the tools of choice. Remaining questions on these issues include: Can a downstream state force its instream standards
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